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The ICC Prosecutor, Collateral Damage, and Ngos: Evaluating the Risk of a Politicized Prosecution

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The ICC Prosecutor, Collateral Damage, and Ngos: Evaluating the Risk of a Politicized Prosecution University of Miami International and Comparative Law Review Volume 13 Issue 1 Article 3 10-1-2005 The ICC Prosecutor, Collateral Damage, And NGOs: Evaluating The Risk Of A Politicized Prosecution Richard John Galvin Follow this and additional works at: https://repository.law.miami.edu/umiclr Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Richard John Galvin, The ICC Prosecutor, Collateral Damage, And NGOs: Evaluating The Risk Of A Politicized Prosecution, 13 U. Miami Int’l & Comp. L. Rev. 1 (2005) Available at: https://repository.law.miami.edu/umiclr/vol13/iss1/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami International and Comparative Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE ICC PROSECUTOR, COLLATERAL DAMAGE, AND NGOS: EVALUATING THE RISK OF A POLITICIZED PROSECUTION Richard John Galvin* I. Introduction ......................................................................... 2 II. The ICC Prosecutor ............................................................. 5 A. Text of the Rome Statute .............................................. 6 B. Analysis of Rome Statute provisions ............................ 10 IlI. Collateral D am age ............................................................... 19 IV . N G O s ................................................................................... 36 V . C ase Studies ......................................................................... 48 A. Kosovo: Operation Allied Force, the NGO response, and the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia .............49 B. Iraq: Operation Iraqi Freedom, the NGO response, and the Belgian universal competence law ................... 64 VI. A nalysis ............................................................................... 81 V II. C onclusion ............................................................................... 102 In the images offalling statues, we have witnessed the arrival of a new era. For a hundred of years of war, culminating in the nuclear age, military technology was designed and deployed to inflict casualties on an ever-growing scale. In defeating Nazi Germany and Imperial Japan, Allied forces destroyed entire cities, while enemy leaders who started the conflict were safe until the final days. Military power was used to end a regime by breaking a nation. Today, we have the greaterpower to free a nation by breaking a dangerous and aggressive regime. With new tactics and precision * Lieutenant Colonel, U.S. Army Judge Advocate General's Corps. LL.M. in International and Comparative Law, 2002, with distinction, Georgetown University Center of Law. Graduate paper, The case for a Japanese Truth Commission covering World War II Era Japanese War Crimes, published in Volume 11 of the Tulane Journal of International and Comparative Law. LL.M, 1997, The Judge Advocate General's Legal Center and School, J.D., 1988, cum laude, University of Minnesota Law School, B.A., 1985, Macalester College. The author thanks Suji Rodgers and Shanna Conner for their superb assistance and research in helping prepare this article while they served as Army Judge Advocate General's Corps Summer Interns in 2003. The views expressed in this article are those of the author and do not represent the views of the Department of Defense or the Department of the Army. U. MIAMI INT'L & COMP. L. REv. VOL. 13 weapons, we can achieve military objectives without directing violence against civilians. No device of man can remove the tragedy from war, yet it is a great moral advance when the guilty have far more to fear from the war than the innocent.-PresidentGeorge Bush' "(I)f I were an American GI, I'd much prefer being held in a cell in the Hague to one in Baghdad."-Richard Dicker, Human Rights Watch, responding to a hypothetical question about the prospect of Saddam Hussein referring allegations 2 against U.S. soldiers to the International Criminal Court I. Introduction In recent military conflicts, the United States has gone to extraordinary lengths to seek to minimize unintended civilian deaths and injuries in combat, commonly referred to as "collateral damage." The U.S has shown its effort in many forms: it has withheld target approval for the Secretary of Defense or President in cases involving potentially high collateral damage, incorporated military legal advisors throughout the operational and targeting planning stages, and used more precision guided munitions as well as sophisticated computer programs that help forecast potential collateral damage. Yet, international human rights non-governmental organizations (NGOs) often protest that enough is not done and that the U.S. may be guilty of war crimes due to collateral damage. NGOs have become a force to be reckoned with in the law of war arena and have attempted to have their complaints heard in judicial 'Remarks by the President from the USS Abraham Lincoln At Sea off the Coast of San Diego, California (May 1, 2003), at http://www.whitehouse.gov/news/releases/2003/O5/iraq/20030501-15.html (last visited Feb. 23, 2005). 2 Lawrence Weschler, Exceptional Cases in Rome: The United States and the Struggle for an ICC, in THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT: NATIONAL SECURITY AND INTERNATIONAL LAW 106-107 (Sarah B. Sewall & Carl Kaysen eds., 2000). During the 1998 Rome Conference deliberations over the International Criminal Court, U.S. Ambassador for War Crimes David Scheffer discussed a major U.S. concern: "'What if,' Scheffer postulated, 'the American army finds itself deployed on the territory of Iraq as part of a U.N. force. Now, Hussein and his nationals are not subject to this treaty because he hasn't signed on. But what if suddenly he pulls a fast one, accuses some of our men of war crimes, and, as head of the territory in question, extends the Court permission to go after them on a one-time basis?"' Id. Fall 2005 THE ICC PROSECUTOR 3 forums. Now that the International Criminal Court (ICC) is operating, the NGOs may seek to use it as a permanent forum to argue that the U.S. is guilty of war crimes in cases of unintended collateral damage resulting from U.S. military operations. The potentially combustible combination of the ICC Prosecutor, NGOs, and collateral damage raises the question of the possibility of a politicized prosecution in the ICC. This article explores the prospect of a politicized prosecution in the ICC directed against the U.S military or senior U.S. civilian government officials. In the United States, those who oppose the Court are uneasy with the prospect that an independent prosecutor may initiate politically motivated criminal investigations into U.S. military operations.4 Conversely, proponents of the Court assert that the ICC contains sufficient safeguards to protect against this possibility.' 3 The ICC was established by the Rome Statute of the International Court. Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002) [hereinafter Rome Statute or RS], reprinted in WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 167 (2001). 4 Marc Grossman, Remarks to the Center for Strategic and International Studies (May 6, 2002), at http://www.state.gov/p/9949.htn (last visited Feb. 23, 2005) ("The Rome Statute creates a prosecutorial system that is an unchecked power.. • . We believe that the ICC is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions."); Pierre-Richard Prosper, United States Ambassador for War Crimes Issues, Address at the Peace Palace, The Hague, The Netherlands (Dec. 19, 2001), in John Washburn, Assessments of the United States Position: The International Criminal Court Arrives-The U.S. Position: Status and Prospects, 25 FORDHAM INT'L L.J. 873 (2002) ("As many of you know, the International Criminal Court has been a point of concern for the United States ... We are steadfast in our concerns and committed to our beliefs that the United States cannot be part of a process that lacks the essential safeguards to avoid a politicization of the process."); Alfred P. Rubin, The United States and the International Criminal Court: Possibilities for ProsecutorialAbuse, 64 LAW & CONTEMP. PROBS. 153, 154 (2001) ("As proposed, the discretion given to the prosecutor is enormous. Thus, the potential for abuse of that discretion is also enormous . ."); John R. Bolton, The Risks and the Weaknesses of the International Criminal Court from America's Perspective, 41 VA. J. INT'L L. 186, 196 (2000) ("Today, however, precisely contrary to the proper alignment, the ICC has almost no political accountability, and carries an enormous risk of politicization."). ' Washburn, supra note 4, at 877 ("Supporters of the Court say that, taken together, this array of safeguards gives almost 100% protection against political abuse or harassment through the Court for the United States . ."); Leila Nadya U. MIAMI INT'L & COMP. L. REV. VOL. 13 Although the U.S. is not a party to the ICC, the power of the ICC Prosecutor has become a pivotal issue because ICC state parties-and even non-state parties-could ask the ICC to extend jurisdiction over U.S. personnel
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